Court-Martial Trial Practice Blog

Political prosecutorial overreach

August 16, 2014 | The Law Office of Philip D. Cave

“That the power to prosecute is a fearsome thing, and, when employed as political tool, is the quick road to tyranny.”

Bill Otis, Politics & Prosecution, a Toxic Brew, 16 August 2014.

I am not a libertarian, but I am one of the defense counsel and independent liberals Mr. Otis will frequently berate, sometimes with rather over the top hyperbole. I read crimeandconsequences regularly because many posts raise important questions, but you have to take note of the style. But on this toxic issue we are of the same mind; both as to the Perry prosecution issue and also the abuse of power.

The best evidence is the best evidence

August 9, 2014 | The Law Office of Philip D. Cave

Prof. Colin Miller, one of my favorite bloggers on evidence, addresses a best evidence issue raised in People v. Haggerty, No. 129, (N.Y. 2014).

Haggerty was accused of defrauding Mayor Bloomberg. During presentation of the prosecution case they called a witness to testify about the contents of a trust fund through which the fraud was alleged to be done.

For the military defense lawyer an immediate lesson is that the defense failed to object at trial. When litigating a court-martial under the UCMJ, all should be aware that a failure to object to evidence places the appellate military defense lawyer in the difficult position of having to argue harmful plain error. In a footnote to United States v. Rankin, 64 M.J. 348, 351, n.3 (C.A.A.F. 2007), the court noted the numerous objections to documentary evidence citing MRE 602, authenticity, and best evidence. But they were not raised on appeal so the court did not address them. Trial defense counsel should not be dissuaded from objecting. As a military appellate defense counsel I much prefer to have the objections – for obvious reasons.

Worth the read

August 5, 2014 | The Law Office of Philip D. Cave

has published a symposium – articles related to military justice, specifically sexual assault cases. Both sides will find something in the articles. Of particular interest are two articles: Major Seamone’s article about secondary affect on military justice practitioners from over exposure to sexual assault cases, and Colonel Schenk’s disagreement with the statistics and compilation of sexual assault statistics.

Major Evan R. Seamone, Sex Crimes Litigation as Hazardous Duty: Practical Tools for Trauma-Exposed Prosecutors, Defense Counsel, and Paralegals, 11 Ohio St. J. Crim. L. 487 (2014).

Lisa M. Schenck, Informing the Debate About Sexual Assault in the Military Services; Is the Department of Defense Its Own Worst Enemy?, 11 Ohio St. J. Crim. L. 579 (2014).

Providence shines down or upon

August 2, 2014 | The Law Office of Philip D. Cave

No this is not a comment on T. Scott McLeod’s book. Nor is it a comment on how to make providence work in your favor, although by the results it could be.

Oh, sorry. Ya gotta read United States v. Stout, decided by ACCA on 25 July 2014.

The accused plead guilty to abusive sexual contact with a 14 year old, indecent liberty with a child, and possession of child porn, all violations of the UCMJ and prosecuted at court-martial. The MJ gave him a BCD and 8. ACCA determined the MJ erred in accepting any of the pleas and set aside the findings and sentence.

Can victims limit prosecutorial discretion

August 1, 2014 | The Law Office of Philip D. Cave

The military SVC programs have been ongoing for a little while. So some signs of the good and bad are starting to show. It is too early to tell if the issues are start-up issues or long term fixes, or cavitations or super-cavitations. One aspect to be expected and not wholly rejected is alleged victims having more of a say in what happens in a case. But how far can a victim and the SVC go in dictating what happens.

My good friend Dew_Process brought an Indiana professional discipline case to my attention and it is worth noting. The issue for the prosecutor In re Flatt-Moore, No. 30S00-0911-DI-535 (Ind. January 12, 2012), was an allegation that she surrendered her discretion as a prosecutor during pretrial negotiations, to the victims money demands. The chief prosecutor had an established policy that they would not agree to a pretrial agreement unless both the police and victims agreed.

During a disciplinary hearing the IO found that the policy did not require or give the victim the right to dictate any restitution amount. The IO found that the prosecutor had engaged in conduct prejudicial to the administration of justice. That is found in Rule 8.4(d) of the Indiana rules of professionalism. The military Services follow the ABA Model Rules of professionalism, as published in Service regulations. The ABA rule 8.4(d) is the same as that in Indiana. The Indiana court found the prosecutor had erred and violated the rule, and the issued a public opinion.

New CAAF grant

July 29, 2014 | The Law Office of Philip D. Cave

No. 14-5007/AF. U.S. v. Steven S. MORITA. CCA 37838. Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT A RESERVIST CAN CREATE COURT-MARTIAL JURISDICTION BY FORGING ACTIVE DUTY ORDERS AND/OR INACTIVE-DUTY TRAINING ORDERS AND BY FINDING THAT COURT-MARTIAL JURISDICTION EXISTED FOR EACH 120-DAY PERIOD LISTED ON THE THREE APPLICATIONS FOR MPA MAN-DAY TOURS.

You can see an analysis of the case status here.

LRM rises . . .

July 29, 2014 | The Law Office of Philip D. Cave

On occasion I note civilian court opinions that reference or rely on military appellate case law. In my view, because of technology we see more courts, especially federal courts, cite to military appellate case law. In United States v. Buchanan, the accused sought to prevent a guardian ad litem (GAL) from filing motions. The court denied the accused’s motion, and in the process cited to LRM v. Kastenberg, 72 M.J. 364, 358 (C.A.A.F. 2013).

Benchbooks and Instructions

July 21, 2014 | The Law Office of Philip D. Cave

The Military Judge’s Benchbook (MJBB) is the bible for how a military judge will instruct the members of your court-martial under the UCMJ. Your military defense lawyer should be well versed in this book and these instructions. The military judge will tell the members what elements of the crime must be proved beyond reasonable doubt; she will tell them about how they may consider evidence presented in court; and she will tell them the voting procedures they must follow to ensure a secret written ballot without undue command influence.

Military appellate courts are not enthused with deviations from the MJBB, even though it is quite possible to do that. Oddly, the military court of criminal appeals allow for minor deviations and don’t actually require exacting compliance with the MJBB. See for example, United States v. Bigelow, 57 M.J. 64 (C.A.A.F. 2002). On the other hand the Court of Appeals for the Armed Forces {CAAF) has cautioned against significant deviations from the MJBB, unless adequately explained on the record. United States v. Rush, 54 M.J. 313 (C.A.A.F. 2001). That’s what happened with the litigation over challenges to Article 120, when a military judge ignored the law and also the MJBB, and advised the members that the accused did not have any burden to prove consent.

It may not matter if the judge does not follow the MJBB when instructing the members. For example in a recent case the Court of Appeals for the Armed Forces (CAAF) decided that the judge had made a mistake in not instructing on a defense, but that the error was harmless. We don’t need to go too deep into this area of trial practice; this is something your appellate military defense lawyer and trial military defense lawyer should know about and discuss with you.

It’s not a privilege children have

July 3, 2014 | The Law Office of Philip D. Cave

I always counsel clients and family that there is NO parent-child privilege in courts-martial under the UCMJ (or in civilian court for that matter). This is important to know and for the military defense lawyer to make clear at the earliest opportunity. Any communications between a child and the parent can be used in evidence if known. That doesn’t mean military investigators or military prosecutors can force a parent to disclose information – well except by subpoena as a court-martial witness. A parent is free to decline to be interviewed if they want. During initial discussions with your military defense lawyer it is always important to discuss the limits to do with privileged communications. Reading the UCMJ, the Manual for Courts-Martial, and the Military Rules of Evidence, you can get a good basic overview. Remember, it is always better to discuss specifics with your military law attorney. Rules of evidentiary privilege are found in Rules 501 to 514 of the Military Rules of Evidence (MRE). The most common privileges you hear about are the attorney-client, the spousal privilege for the accused and for the non-accused spouse, the psychiatrist-patient privilege, and the clergy privilege. Each of these rules, except for MRE 514 are long-standing and well developed. The two more recent developments have been the exception where spouses are substantially and jointly involved in (the same) criminal activity, and the addition of the “victim advocate – victim privilege.” The Court of Appeals for the Armed Forces had rejected the joint crime exception because that was not in the Rule at the time. See United States v. Custis, 65 M.J. 366 (C.A.A.F. 2007). There is still some ambiguity and perhaps confusion whether there is an exception to a privilege through forfeiture by wrongdoing. See e.g., United States v. Marchesano, 67 M.J. 535 (A. Ct.Crim. App. 2008), pet. denied 67 M.J. 371 (C.A.A.F. 2009). Under the UCMJ there is no parent-child privilege, nor is there one in any MRE. See United States v. Landes, 17 M.J. 1092 (A.F.C.M.R. 1983); United States v. Kelly, ACM 26707, 1988 CMR LEXIS 719 (A.F.C.M.R. September 2, 1988)(unpub.). And in light of the analysis in Custis, it is unlikely the appellate courts can graft one on. This is consistent with federal court practice. Recently the Fourth Circuit has ruled that a federal trial judge erred by “adopting the parent-child privilege and excusing” a nineteen year old son “from testifying before the grand jury” in a firearm investigation involving his father[.] In Under Seal v. United States, _ F.3d _ (4th Cir. June 16, 2014) (No. 13–4933);

The Fourth Circuit declined to apply a parent-child privilege. In reaching this conclusion, the circuit noted: “No federal appellate court has recognized a parent-child privilege, and we decline to do so here.” In particular, the circuit noted that “Doe Jr. has not made a strong showing of need for the parent-child privilege, and ‘reason and experience’ do not warrant creation of the privilege in the face of substantial authority to the contrary. Fed. R. Evid. 501.” Under Seal, _ F.3d at _ (citation omitted). In arriving at this decision, the circuit canvassed the cases that have considered the issue at the district court and circuit levels.

Thanks to federalevidence.com for bringing this to our attention. In addition to the Fourth, the Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh federal circuits agree. Federal evidence review blog notes that district courts in Nevada, Connecticut, and Washington do seem to have recognized such a privilege. Regardless, a military accused and his parents should continue to exercise care in what discussions they have about an alleged offense. There may be a limited way to create privileged communications, but it is not under any sort of parent-child privilege. But these are matters to be discussed with the military defense lawyer first.

A new trial gained

July 1, 2014 | The Law Office of Philip D. Cave

For client Sgt Brown, with the assistance of his military defense lawyer we have secured a dismissal of some charges and a new trial on the remainder. In United States v. Brown, the NMCCA issued an opinion on 30 June 2014, which addressed three of eight errors we raised: multiplicity of charges, validity of a false official statement, and improper use of character evidence which substantially prejudiced the defense. Because of the court’s resolution of these errors they did not address the remaining five.

The court concluded that because of the prosecution and judge failures, “The findings and sentence are set aside. Charge II and its sole specification (false official statement) are dismissed with prejudice. A rehearing on the remaining charges is authorized.”

1. On the multiplicity the court stated that, “we note that the Government concedes on appeal that it is “well established that the simultaneous possession of several weapons constitutes only one offense” for purposes of 18 U.S.C. § 922(g)(9). ”